Written evidence from Doughty Street Chambers (HRB0043)
Introduction
The Joint Committee on Human Rights has issued an open call for evidence, asking interested parties and stakeholders to submit evidence on any impact of the UK’s proposed withdrawal from the EU on the human rights framework and protection of human rights in the UK. This submission has been prepared by three lawyers specialising in human rights and international law: Susie Alegre, Caoilfhionn Gallagher and Katie O’Byrne, barristers at Doughty Street Chambers. We all have particular expertise in relation to the human rights implications of Brexit. For example, Caoilfhionn Gallagher and Katie O’Byrne recently wrote an independent report, commissioned by the GUE/ NGL group of the European Parliament, on the potential effects of repeal of the Human Rights Act 1998 (“HRA”) on Northern Ireland, and devolution-related human rights matters including possible withdrawal from the EU. Susie Alegre has been working closely with the Centre for Small States at Queen Mary, University of London, on the human rights implications of Brexit for British Crown Dependencies and Overseas Territories. Please note that this submission is sent by all of us in our personal capacities only, and is not related to any other appointments held.
Executive Summary
This submission is necessarily short, given the usual 3,000 word guideline, and we have noted only a number of the key issues arising (although we consider there to be additional serious human rights issues of concern, not addressed here).
In this submission we address:
Over the past decade, myths and misinformation about human rights protection in the UK have circulated widely, often perpetuated by politicians, including at very senior level. Two examples are highly relevant when considering the human rights implications of Brexit: first, the flawed conflation of the HRA/ European Convention on Human Rights (“ECHR”) with the EU; and second, the pervasive notion that “barmy Euro human rights judges” are protecting criminals and terrorists under human rights laws at the expense of “law abiding people”.
Proposals to “scrap” the HRA over the past decade have repeatedly linked the HRA directly with the EU, arguably in order to increase the appeal of the reforms to Eurosceptics, despite the systems being separate.
The second area of misinformation which we note is the repeated criticism of the very concept of ‘human rights’ and perpetuation of the wholly flawed notion that they protect only wrongdoers (criminals, terrorists, illegal immigrants) and do nothing for ordinary, average citizens. This is a visceral and inaccurate message. Human rights protection (under the HRA, the ECHR, via EU mechanisms or internationally) assists all, and in particular it assists the most vulnerable in our society – including low-paid workers, child victims of trafficking, victims of crime, and individuals subject to discrimination because of their gender, sexual orientation or disabilities.
These two misconceptions regarding human rights provided the ‘mood music’ to the Brexit referendum.
The political dynamics around the UK referendum in the EU created a worrying erosion of the rule of law and legal certainty in European institutions. Arguments about the legal status of the reform deal offered to the UK by the EU in the lead up to the referendum questioned whether elements of the deal effectively reformed the EU Treaties without proper process. Senior political figures asserted that the deal was irreversible implying that it could not be overturned by the European Court of Justice (“ECJ”).
In the weeks before the referendum, the ECJ ruled the UK could require recipients of child benefit and child tax credit to have a right to reside in the UK endorsing one of the issues the UK Government had tied to its reform package. The timing of the judgment and the way the reform deal was presented to the UK public painted a picture of a legal framework that could be easily manipulated to suit the political expediency of a Member State.
Ultimately, any steps taken by EU institutions to encourage the British public to vote to stay in the EU failed. But the impact on the rule of law and legal certainty in international legal frameworks is worrying and could, in our view, have a ripple effect in international human rights law.
The UN Committee on Economic Social and Cultural Rights (“CESCR”) highlighted the negative impact of austerity measures in the UK on marginalised groups in its latest concluding observations on the UK in July this year. Although it is not yet clear what the economic impact of Brexit will be on the UK, it is certainly likely that the decision to leave the EU will lead to a high degree of uncertainty which could put increased pressure on public finances. The economic climate following Brexit, combined with the loss of EU funding for regional development in deprived communities and international development funding for remote communities in UK Overseas Territories poses a risk for the economic, social and cultural rights of the most vulnerable in our society.
The CESCR also referred to the need to ensure that fiscal policy doesn’t exacerbate socio-economic divisions in society. Outside the EU, the UK will have a freer hand to dictate its own fiscal policy. This poses a significant risk but could also offer an opportunity if economic, social and cultural rights are placed at the heart of British fiscal policy in the UK and its overseas territories and crown dependencies in the future.
We note that there are particular concerns regarding the impact of Brexit on the Northern Irish economy. The Good Friday Agreement (1998) recognises the special relationship between the UK and Ireland, as friendly neighbours and partners in the European Union. The Irish Taoiseach, Mr. Enda Kenny, stated that the Irish Government’s strong view, backed up by independent economic research, was that Brexit is not in the economic interests of either Ireland or Northern Ireland. He highlighted that the EU is a cohesive and stabilising force for peace in Northern Ireland, has contributed substantial funds to help Northern Ireland overcome the challenges of emerging from conflict, and he stated that, “common membership of the EU project is part of the glue holding [the] transition process together.”
B. Rights and the EU
The EU Charter of Fundamental Rights is an important and under-developed mechanism for the protection of human rights. The Charter is directly effective in the UK, meaning that the rights and protections it contains have supremacy over inconsistent national law or decisions of public authorities. While the courts in the UK can only make a ‘declaration of incompatibility’ under the HRA if a measure violates a Convention right, national courts can invalidate an Act of Parliament where it is inconsistent with the Charter, if it is within the scope of EU law. The remedy of striking down or disapplying Acts of Parliament where they breach fundamental rights in the Charter is considered to be the chief advantage of the Charter over the ECHR.
The Charter also develops certain rights in more detail than the ECHR. For example, in Article 11 of the Charter (freedom of expression), there is express recognition of the importance of media pluralism (Article 11(2)). The Charter also includes certain rights not expressly recognized in the ECHR, such as human dignity (Article 1), freedom of the arts and sciences (Article 13), freedom to choose an occupation and engage in work (Article 15), freedom to conduct a business (Article 16) and the rights of the child (Article 24).
In addition to the Charter itself, human rights are protected through other, specific EU measures. For example, Council Framework Decision on the standing of victims in criminal proceedings (2001) and Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime provide strong protections for victims go beyond the protections in the HRA and the ECHR.
In addition to the right to private and family life, the Charter provides for the protection of personal data in Article 8. In a digital world, this protection is increasingly important and EU law relating to data protection has been used as the basis for successful and ongoing challenges to UK laws on data retention and surveillance. It is a particular concern that the protections afforded by EU law relating to data protection and privacy may no longer apply in the UK.
In April 2016, the EU passed new data protection legislation – Regulation EU 2016/679 (the General Data Protection Regulation – “GDPR”) and Directive (EU) 2016/680. This framework is designed to protect the data of EU citizens and any business outside the EU that processes personal data will need to be GDPR compliant if it wants to do business with the EU. There is a risk that, after Brexit, the UK may not have the necessary standards of data protection in place. This would result in reduced protections for UK residents and would also impair the ability of British businesses to engage with the European market.
EU equality law has driven significant advances in UK equality law. While human rights law also provides protection against discrimination in UK law (for example, through Article 14 ECHR), EU law protections are far more explicit in securing specific obligations on private individuals and companies as well as the state.
As experts have noted, the progress of equality law between the UK and EU has been symbiotic rather than uni-directional. In its turn, the UK has often led the way by providing more protection than EU law requires, for example in imposing the public sector equality duty. The Equality Act provides a model for further developments in EU law.
Depending on the framework adopted for Brexit and future trading with the EU, and particularly in the event of a ‘hard Brexit’, protections in EU equality law may no longer apply in the UK. The base level of specific EU obligations may fall away entirely, meaning that the UK Government could more easily repeal or weaken domestic protections for certain characteristics, such as age or gender. Without pressure from the EU, protection of equalities (particularly those requiring allocation of resources rather than simply statements of principle) would be vulnerable to variations in the political or economic agenda of the Government of the day. Future EU directives (such as the current proposal for a European Accessibility Act) and ECJ rulings may not apply in the UK and could not be relied on in UK courts.
Children’s rights have strong protection in EU law, and inform EU policy-making and investment. Article 24 of the Charter echoes the so-called ‘welfare principle’ Article 3(1) of the UN Convention on the Rights of the Child, providing that, “in all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration.” Whilst this principle applies in UK law in other ways in particular circumstances (in particular, through s. 55, Borders, Citizenship and Immigration Act 2009, or through the HRA), Article 24 means it is directly enforceable in domestic law, provided the matter is within the scope of EU law. This is a powerful protection for children’s rights.
Further, the importance of children’s rights to the EU is reflected in the wide range of funding programmes with relevance for integrated child protection systems, from which the UK will no longer directly benefit if outside the EU. The Commission also acts in a variety of areas to protect and promote the rights of the child which has substantial benefits for children in the UK, particularly when the risks to children are cross-border: see, for example, the Safer Internet Programme or the detailed work which is undertaken on child sexual abuse and exploitation.
Article 37 of the EU Charter explicitly provides for a high level of environmental protection and the improvement of the environment to be integrated into the policies of the Union. The EU has legislated on a wide range of environmental issues, including air quality, which have a direct impact on people’s health. Official figures estimate over 31,000 premature deaths in 2010 in the UK due to air pollution. Children and older people are particularly affected.
Successful legal challenges in the UK about the air quality in London are based on EU law. Brexit could mean the UK is no longer bound by EU standards and will make it harder to take legal challenges protecting the rights of the public affected by environmental issues.
The UK, through its legal and diplomatic expertise, has played an important role in the negotiation and design of EU draft laws and policies since joining the European Economic Community in 1973. Contrary to claims that the UK has been marginalised in EU negotiations, other research has found the UK is the most well-connected and central to negotiations of all EU governments.
The UK’s position has enabled it to influence not only the development and content of rights, such as in the area of equality law as defined above, but also their regulation. Another study found that the UK’s position has tended to be much closer to EU policy outcomes than that of any other large EU member state.
As a result of triggering Article 50, the UK’s negotiating position and ability to influence EU policy will be significantly weakened. There may be a degree of hostility from some EU member states and a lack of willingness to listen to UK views in the short to medium term. Depending on the model adopted for Brexit and whether the UK intends to be bound by some or any EU laws, this may have a short and / or long-term effect on the UK. In the event of a ‘hard Brexit’, although it may have third country status, the UK will lose its formal place at the bargaining table where EU governing laws and policies are negotiated.This is also likely to have a practical impact in areas such as international cooperation in criminal law.
C. Rights and citizenship
Wholesale withdrawal from the EU is an unprecedented step for any EU member state, so the legal and practical ramifications of Brexit for British citizens are as yet untested. The UK Government continues to give assurances that the rights of UK nationals in EU member states will be properly protected after the UK leaves the EU, but has not set out any proposed mechanism for ensuring this.
Notwithstanding such assurances, it would appear that leaving the EU will be likely to strip British nationals of their EU citizenship, and will mean that the EU Charter and other EU protections will no longer apply to UK citizens (and, as we note above, EU rights are in many respects more detailed and specific than ECHR rights currently protected via the HRA).
This may raise particular concerns for UK citizens with third country national partners or partners from other EU countries, as it may hamper their ability to settle in that other country and / or may jeopardise their partner’s status in the UK.
We have serious concerns regarding the impact of Brexit on the three million EU nationals who currently live, work and have families in the UK. This includes both short-term concerns, regarding the lack of certainty they now face, and longer-term issues. It is unclear what the impact upon EU nationals in the UK will be, given the absence of detailed proposals and the total uncertainty regarding how current residence rights will be approach. However, it is clear that there may potentially be a grave impact upon their rights, including in particular their rights to private and family life. Individuals who have moved to the UK, in good faith, and on the assumption that this would be their permanent home, may find their status downgraded. Individuals who are married to UK citizens, or who have children who are dual citizens of the UK and another EU country, are also unsure of the impact upon them, their spouses, and their children.
Probably the most difficult challenge associated with a British exit from the EU is the issue of devolved competencies and democratic viability, in circumstances where both Scotland and Northern Ireland voted by majority (62% and 55.8% respectively) to remain.
EU law, along with the ECHR, is directly incorporated into the devolution statutes. The Scotland Act 1998, at s. 29(2)(d), provides that Acts of the Scottish Parliament that are incompatible with EU law or the ECHR are “not law”. The Government of Wales Act 2006, s. 108(6), states that any act of the Welsh Assembly incompatible with EU law or the ECHR falls outside its competence. The Northern Ireland Act 1998, s. 24, prohibits any legislation contrary to EU or ECHR law.
These Acts could of course be amended along with repealing the European Communities Act 1972, but the political dimensions of doing so are complicated. Under the Sewel Convention, the UK Government will proceed in accordance with the convention that the UK Parliament would not normally legislate with regard to devolved matters except with the agreement of the devolved legislature. It is doubtful that this consent would be forthcoming, at least from Scotland and Northern Ireland.
The unique position of Northern Ireland has been largely overlooked in the Brexit debate and now poses particular problems. As we have noted above, as part of the Northern Ireland peace settlement, the Good Friday Agreement - an international treaty between the UK and the Republic of Ireland - makes specific mention of the UK and Ireland being friendly neighbours and partners in the European Union. Brexit, in our view, destablises the peace process given the importance of the EU and fundamental human rights protection to the Good Friday Agreement. There are also two practical issues which remain unresolved: passports and borders.
Anyone born on the island of Ireland before 2005 (and the vast majority of those born since then) is entitled to carry an Irish passport – meaning that many people living in Northern Ireland carry Irish passports. Should they continue to enjoy the benefits of EU membership, even if the UK has pulled out? If so, will those entitled to Irish passports living in other parts of the UK choose to obtain one? Many months ago we predicted the surge in Irish passport applications which has followed the referendum result.
A key thrust of the pro-Brexit campaign has been about preventing unwanted outsiders entering the UK, and to focus on hard borders with physical barriers (customs posts, patrols, razor wire fences). But the problem is that the UK only shares one land border with another state, the Republic of Ireland. If the border were to be affected, this would wreak havoc with the devolution settlement and the peace process, and it would of course cause problems for those who regularly cross the border for work or family reasons. Cathal McCall has posed the question whether a post-Brexit government could entertain the continuation of an open Irish border. We have heard no definitive answer to that important question yet. This week, there have been reports of negotiations between the UK and Irish governments, with the UK suggesting that the Irish should strengthen their approach to policing their border, and suggestions of increased data sharing.
In our view, there is a clear risk that Brexit may foreshadow a constitutional crisis, or at least a patchwork approach to law, regulation and the status of citizens in the UK. There will be a clear distinction between those whose family background allows them to continue to enjoy EU citizenship through dual nationality and those who will lose their EU citizenship. Furthermore, Brexit raises a real possibility of a further independence referendum in Scotland and some have queried whether it may herald the long-term break-up of the UK.
The UK is responsible for a number of non-self-governing territories including British Overseas Territories and Crown Dependencies. With the exception of Gibraltar, those territories are not within the EU although they have a range of different agreements governing their relationships with the EU. But most residents of these territories are British citizens with the associated rights of EU citizenship that will be curtailed as a result of Brexit. Despite the potential impact on their lives and their rights as EU citizens, residents in overseas territories and crown dependencies were, for the most part, excluded from the referendum vote (Gibraltar did vote, and voted 96% in favour of remaining in the EU).
Brexit is likely to have profound consequences for the economic, social and cultural rights of people in the UK’s overseas territories and crown dependencies as well as the UK’s ability to represent their interests effectively on an international level. But they have either not been allowed to vote on it or they have voted overwhelmingly against it. These territories are diverse and the impact of Brexit will be different for each one. Their exclusion from a vote that may fundamentally alter their enjoyment of ESC rights and their position in the international order raises serious questions about the respect for the right to self-determination and may give rise to a review of their constitutional relationships with the UK and the wider world.
D. Conclusion
We have in this submission provided a flavour of some of our more serious concerns regarding the human rights implications of Brexit. Whilst difficult to predict the consequences, particularly in the absence of detail regarding the precise model and terms of disengagement, it is apparent that they are potentially wide-ranging and many in the UK are feeling adverse consequences already.
October 2016
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